F-Words

Some words and arguments to avoid in law school exams

This post is the first in what I plan on making a short series dealing with some things that bother me while marking public law exams. I once wrote a post along these lines, but happily at Reading its very basic advice is not as necessary as it was where I used to teach. Do refer to it for 101-level stuff. And please also refer to Mark Elliott’s excellent and helpful post, over at Public Law for Everyone, on the importance of making an argument in an essay question (or indeed a longer-format essay). That would be the 201 module.

This, by contrast, is going to be “issues in” course. What this means, really, is a course in the professor’s pet peeves. Of course, different people have different ones, and these might only be mine. But I do hope that they are of some use, both to colleagues and to students, and I hope that they will make for some entertainment if nothing else. After all, the first lesson concerns f-words! No, no that f-word. There are others, including four-letter ones. The one I’ll mostly focus on is “fair”. But first, let me say something about “floodgates”.

Floodgates arguments generally suggest that A’s claim against B should not be entertained by a court, because if it is, other similar claims will be brought ― the floodgates of litigation will open ― and the courts will be deluged with more cases than they can handle. I don’t think that floodgates arguments are often successful in real life. If A’s claim against B is without legal basis or factual merit, it can be rejected, and the rejection ought to serve as a deterrent to analogous future claims. To invoke the floodgates argument is to implicitly concede that, at the least, there may be something to A’s claim. But having made that concession, an advocate and especially a court will find it awkward to peremptorily refuse doing justice for no other reason than to economise resources. If many analogous claims ― all possibly meritorious ― are out there, the injustice of refusing to consider them is only compounded.

As a result, floodgates arguments are rarely persuasive in student work either. Truth be told, they are often the mark of a weak script. It is sometimes difficult not to suspect that the student could think of nothing better, simply remembered this catchy name, and went with a floodgates argument for lack of an alternative. Perhaps even a weak argument, at least if it is used accurately, is better than none at all, though one might want to consider whether making an inherently feeble argument does not harm one’s cause by exposing the defects of one’s position. (This is certainly true of the “kitchen sink approach”; not only do many bad arguments not add up to a good one, but they make it clear that one hasn’t understood which arguments are worth making.) Anyway, if you are choosing among a floodgates argument and a different one, always go for the other idea, whatever it might be. I would suggest making it a rule to simply banish this particular f-word from your vocabulary. It is a crutch, and not relying on it will only help you by forcing you to think a bit harder and more creatively.

My beef with the other f-word, fair (or its derivative fairness), is much the same: it is a crutch makes students think they’ve made a satisfactory case when they haven’t. But the explanation is perhaps a little more complicated in this case, or at least harder to believe. Unlike the floodgates of litigation, fairness is not a fancy-sounding technical concept, but one that we appeal to all the time. Unfortunately, that is part of the problem. Nobody wants to be against fairness, of course. But we should all be wary when someone ― including, I am afraid, a student in an exam answer ― seeks to persuade us by making opposition emotionally difficult rather than logically impossible. We should also be wary of making such arguments ― ideally, out of respect for our readers but, failing that, out of a self-interested concern not to arouse their suspicion that we might be trying to trick them.

More substantively though, fairness ― despite its intuitive appeal ― is also an elusive notion. Just what it means in any given context is often unclear. Now, sometimes ― and in our daily life, often enough ― we have a good, and, importantly, shared, sense of what fairness requires. If you insisted on choosing where to go for dinner with your friend last time, it is fair to let the friend choose now. If you were late to the pub, it is fair to buy your friends a drink. And so on. The trouble is that shared understandings of what is fair run out quickly in the kind of situations that law school exams, and indeed a great deal of law ― perhaps especially, though by no means only ― public law in the real world deal with.

Does fairness mean that people should be subject to human rights constraints or allowed freedom from them? Does it require government to seek parliamentary approval for a given course of action? Does it mean officials need to comply with rash, perhaps untenable promises to members of the public? Students ― and not only students, to be, ahem, fair ― may think that there are answers to such questions. But there are usually people on both sides of them. If you find one in an exam paper, you can be very confident indeed that there are serious arguments on both sides. And people on both sides probably think that their answer is fair. This suggests that no real concept of fairness is doing the work of compelling an answer one way or another. At best, people rely on intuitions about what is fair. At worst, they are actively covering up their true motivations under the specious rhetoric of fairness. (To be clear, I don’t suppose students do this often, if at all.)

Of course, these questions must have answers, if only provisional ones, and there are reasons why the answers are or ought to be one way rather than another. But fairness is not such a reason. There are other considerations involved. Some have to do with specific constitutional principles such as individual liberty, government accountability, the Rule of Law, the sovereignty of Parliament, or what have you. Others are policy arguments (including the dreaded floodgates, though to repeat it is a particularly weak one). Usually, more than one reason bears on a given answer. Relevant considerations sometimes complement one another, and sometimes pull in different directions. But it is their summing up, untidy and unsatisfactory as it sometimes is, that actually answers difficult questions, rather than appeals to fair play.

As with “floodgates”, I think that students should banish the other f-word from their exam-writing vocabulary. If you feel the itch to use it ― and, given its ubiquity, that is understandable ― you should ask yourself why you think that this course of action, or this approach to the problem, or this rule, is or would be fair. And then, give that explanation, in as much detail as you have room for, instead of speaking of fairness. Again, this will force you to think harder ― but it will also make for better results, because you will be discussing actual principles and policy arguments instead of hoping that the marker shares your intuitions, or at least understands them ― and neither is a given.


Whatever their differences in detail, marking grids at every law school I have known as either a student or a lecturer reward, first, understanding of the subject and then, to get really high marks, critical thinking and creativity. Clichés and stock arguments add little to a demonstration of competence, and actively get in the way of showchasing originality. The less you rely on them, the better off you are likely to be.

Some Major Questions About Major Questions

In West Virginia v EPA, the Supreme Court of the United States, wielding the “major questions doctrine” found that the EPA did not have the statutory authority to adopt regulations implementing the Clean Power Plan, initially proposed by the Obama administration in 2015.  In this post, I describe why I think this decision was ultimately misguided, how the major questions doctrine might be recast, and why some of the dissent’s concerns are themselves misguided. In short, while I share concerns about agency opportunism, I do not think this judicial creation is the solution.

Under the Clean Air Act, the EPA has broad authority to establish regulatory “standards of performance” in relation to certain categories of pollutants. These include the adoption of the “best system of emission reduction,” taking into account various factors, that the EPA administrator “determines has been adequately demonstrated.” Under this provision, the EPA adopted a “generation-shifting” system rather than a plant-by-plant regulation system; in other words, it decided that the “best system of emission reduction” included generation-shifting. A generation-shifting approach, as I understand it—such as cap-and-trade, or investment in alternative sources—is a different sort of regulation because it purports to operate on a system-wide basis, rather than on an individual source basis. The EPA’s regulatory choice thus cut rather broadly to attack emissions across different sectors. There is much more detail in the opinions that I am leaving out for the sake of brevity.

The majority opinion (Roberts CJ) concluded that this was a “major question,” meaning there was “every reason to hesitate” before concluding that Congress meant to confer this authority on the EPA (20, see also Brown & Williamson, at 159-160). In order to draw this conclusion, Congress would need to include special authorization, or a so-called “clear statement.” In “major questions” cases, the majority tells us that “both separation of powers principles and a practical understanding of legislative intent” make it reluctant to find that the EPA’s stated authority here was buried in “vague” provisions like s.111(d) (19); here we see some concern about agency opportunism and attempts to expand statutory authority. The Court tells us that it has, as a matter of course, deployed the major questions doctrine in extraordinary cases where the agency asserts broad authority of economic and political significance (17). Put simply, as the majority frames it, the major questions doctrine is like a substantive canon of construction: the Court proceeds on its own assumption that Congress would not have wanted the EPA to have this authority, absent an explicit statement otherwise.

In dissent, Kagan J attacked the majority’s use of the major questions doctrine. Chiding the doctrine as a “get-out-of-text-free card” (28), Kagan J reasoned that the statute here was broad, but not vague (8). The breadth of the statute was by design. While this was so, Kagan J noted that the grant was also constrained: in concluding what the best system of emission reduction is, the EPA must consider “costs and non-air impacts” while making sure that the best system has been “adequately demonstrated” [7].

For Kagan J, the invocation of the major questions doctrine elided this delegation of power. She reasoned that the “doctrine,” such as it is, had only been deployed as part and parcel of ordinary statutory interpretation, determining the scope of delegated power conferred on an agency: “the text of a broad delegation, like any other statute, should be read in context, and with a modicum of common sense” [13]. Kagan J was concerned that the use of this special rule short-circuited the Court’s duty to actually determine what the statutory provisions meant, and whether the EPA’s regulation fit within the provision. Kagan J goes on to wax poetic about the importance of expertise and the administrative state (I’ve registered my opposition to these particular, age-old arguments before, and renew them to some degree below).

That said, I see a few problems with the majority’s recast of the major questions doctrine:

  • Despite the majority’s protestations otherwise, there has been a shift in the way the major questions doctrine works. Scholars, as I read them, tend to disagree about which cases mark the turning point, but I think it is fair to say that WV v EPA is the capstone. As I understood it, the doctrine was previously attached to Chevron deference. If a question was a “major question,” it was a reason to deny deference to the agency’s asserted interpretation; not a presumptive rule against ordinary agency action in certain, ill-defined “major” areas. But now the doctrine has taken on a life of its own; gone is Chevron. The lineage of this change does not suggest that it is justified.

 In Brown & Williamson, for example, the Court conducted a normal statutory analysis as prescribed under Chevron Step 1, and concluded that “Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products” (Brown & Williamson, 126, 132). It was only after this exhaustive analysis that the Court additionally concluded that, given Congress’ structured and deliberate scheme for tobacco regulation, the FDA could not likely have been given the authority to regulate tobacco products (Brown & Williamson, 159-160). This was not a standalone, substantive canon of construction; it was a tool of judicial common sense, an insight drawn from the application of the tools of interpretation, to determine that a statute precluded the agency’s view. Second, in Utility Air, the majority (Scalia J) questioned whether the agency’s construction could be reasonable under Chevron Step 2, given its “claim to extravagant statutory power” (Utility Air, at 20). Here, the “major questions” concern operates as a sort of defeasible outer limit that limits the range of reasonable options at Chevron Step 2. Even in King v Burwell, the Court used the major questions exceptions as a means to an end: to conclude that it should conduct an independent assessment of the statute in that case. In all of these cases, the major questions doctrine was operating more as an “add-in,” or “tie-breaker”: see, relatedly, fn 3 of the concurring opinion of Gorsuch J.

So, quite aside from the sotto voce overturning of these, weaker versions of the major questions doctrine, the consequences of moving from a deference rule (a rule changing the intensity of review, but not changing the legislature’s delegation process) to a delegation rule (a rule denying a power to delegate straightforwardly on an ill-defined set of questions at all)  is not small, and there are two. First, because the Court only offers a set of mushy guidelines for what constitutes a “major question” on which Congress will require an explicit statement, Congress may be left wondering how and when it must make itself “clear.” Second, on principle, Congress regrettably must—according to the Court’s standards—make itself clear. This was not required under Chevron. As Kagan J notes, the major questions doctrine—as deployed by the Court in WVA v EPA—basically shortcircuited this statutory analysis. Instead, rather than determining whether the statute supported the EPA’s reading, the Court was rather results-oriented: because the issue is big, even normal statutory authorization should not count, even though the EPA’s view was plausible (and certainly not vague—as Kagan J says, the issue here is breadth). It is plausible, as the majority suggests, that Congress did authorize this power in the text of its law. But this authorization was not explored, or otherwise, was inexplicably not enough.

  • Gorsuch J, in a concurring opinion, attempted to avoid this conclusion by stating that substantive canons of construction are accepted tools of interpretation. Indeed they are. But one should evaluate the lineage and triggers for these substantive presumptions, and at any rate, all should agree they should be used with caution and rooted in consistent doctrine and principle. Otherwise, they can be manipulable “get out of text free” cards. For this reason, many of the substantive canons are rooted in clear constitutional concerns: for example, some of the presumptions concerning federalism.

What is the constitutional basis of this form of the major questions doctrine?  One candidate might be the same pool of principles that grounds the non-delegation doctrine. But I think it is hard to justify this doctrine as some extension or analogue to the non-delegation doctrine (cf Cass Sunstein) in the mould of the Benzene Case. Undoubtedly, one can conceive of some important similarities—the Court has sometimes gestured to an asserted power as being too broad to justify Chevron deference. But, again, in all the cases, the problem was simply that Congress had foreclosed such extravagant regulation. Instead, the non-delegation doctrine, as a constitutional doctrine, is primarily concerned with the scope of delegated power. Courts seek an intelligible principle to determine whether the power is adequately guided. The idea is that, absent a guiding, legislative principle, an agency is exercising legislative power unconstitutionally, in a manner contrary to Article I.

While there are powerful historical arguments against the non-delegation doctrine that I am not equipped to evaluate, I take it as a given that it is alive and well, and that it—at least in some part—aims at preserving legislative power and control over administrative decision-making. Nonetheless, the new major questions doctrine deployed by the Court in WV v EPA is not, at least primarily, concerned with the breadth of delegated power per se. As Kagan J recounts, the delegation of power to the EPA in this case is, indeed, broad, but it is not beyond the pale. The EPA does have some meaningful constraints built-in to the statute, and such constraints likely save the delegation from any challenge on non-delegation grounds. The major questions doctrine, then, isn’t so concerned with the breadth of delegated power as much as the significance of the issue at hand. But issue significance does not necessarily equal broad delegated power; in other words, we can have broad delegated power in unimportant areas, which could plausibly raise non-delegation concerns, or we can have narrow delegations in important areas, which would raise major questions concerns. These doctrines are aiming at different things. As John Manning so eloquently said: “If the point of the nondelegation doctrine is to ensure that Congress makes important statutory policy, a strategy that requires the judiciary, in effect, to rewrite the terms of a duly enacted statute cannot be said to serve the interests of that doctrine.”

In whole, the result of this doctrinal shift is a complication of the basic task of the law of judicial review, and an arguable corruption of the legislation delegating the power at issue. The law of judicial review is designed to be an adjunct branch of statutory interpretation, to determine the scope of powers granted to an administrator. Whether Chevron has one or two steps, this is the core of the thing. With this new major questions doctrine, the law of judicial review is somewhat different. Less important is the text of the laws delegating power. More important is whether the court thinks the issue over which the power is delegated is “important” or “big” enough. This abstracts away from the core question on judicial review: does the agency have this asserted power to conduct this action, no matter how big the problem  may be?

II.

With these concerns in mind, I think it might be useful to consider how Canada deals with questions of this sort, because I think the doctrine aims at some of the same concerns as the major questions doctrine while avoiding some of the potential pitfalls, as I see them.

 In Canada, our going-in presumption is reasonableness review (for an apt description of why Canada gets this backwards in relation to the United States, see Leonid Sirota). This presumption can be rebutted, in which case the court reserves to itself the right to pronounce on the legal issue without any deference. One of the circumstances in which the presumption can be rebutted is in cases involving “general questions of central importance to the legal system as a whole” (see Vavilov, at para 58 et seq). This category has much in common with the gist behind the “major questions” category, but there are important differences. First, the justification for the central questions category in Canada is not concern about delegated power; rather, it is designed to protect the role of the judiciary as the most important external check on administrative power. Issues that are considered centrally important must be answered consistently by courts, because they engage the rule of law, over which the judiciary is the primary guardian. Notably, however, in defining a central question, the courts are careful not to unduly eat away at the legislature’s right to delegate power. As the Supreme Court says, “the mere fact that a dispute is ‘of wider public concern’ is not sufficient for a question to fall into this category—nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue” (Vavilov, at para 61).

And so the questions recognized by the court concern the stability of the legal system, issues that transcend an administrator’s particular statutory grant of authority. These issues have typically concerned constitutional or quasi-constitutional issues. For example, in University of Calgary, the question was whether a decision of an administrator that a statute permits solicitor-client privilege to be set aside. The Court refused to defer in this case, because solicitor client privilege has a constitutional dimension, and the “question of what statutory language is sufficient to authorize administrative tribunals to infringe solicitor-client privilege is a question that has potentially wide implications on other statutes” (University of Calgary, at para 20).

Why is this doctrine preferable, at least on these points, to the major questions doctrine, as deployed in WV v EPA? For one, the Canadian version expressly forecloses the possibility that an issue’s importance factors into the analysis. Many issues can be characterized as important; this is the challenge of the law of judicial review, to channel and sometimes restrict administrative power over these important areas of public life. Second, the benefit of a rule restricting deference is that it can be justified with reference to fundamental tenets of the law of judicial review. There are good rule of law reasons, pertaining to the judicial duty to pronounce the law, to carve away deference in cases where an agency attempts to exert power in a way that may transcend its own statute, or engage quasi-constitutional norms. Legislatures should not be impliedly granted the power to, by delegation, carve away the core powers of judicial review. And so,  uniformity of the administrative justice system requires not percolation, but correct answers. This approach also answers for the problem of agency opportunism: an agency that seeks to manipulate its own powers in order to affect these broader areas of legal importance should be met with a resolute judiciary. Nonetheless, the category is pared down not to every conceivable important issue, but to core concerns of the judiciary that implicate the rule of law. With these more narrow justifications, I would venture that the Canadian law of judicial review—only on this score—may be more stable than the American.

III.

In the meantime, I do not expect nor suggest that American courts should look to Canada for guidance. Even still, I do not think that the US situation is as dire as the dissent and some commentators suggest. As Kristin Hickman notes, Congress can rectify the ruling in WV v EPA tomorrow (even if it should not have to): it can simply legislate a clear statement. To be clear, this is an additional, probably unjustified hurdle. But the ball is in Congress’ court.  And, as I have argued before, non-delegation limits on administration will not hobble administration, and may actually incentivize better deliberation and guidance.  Further, administrative government is vast, and few regulations are challenged such that this case will make a difference on a wider scale. These are the practical realities that limit this new major questions doctrine, but I admit there may be more I am simply missing or misunderstanding

Nonetheless, as far as it goes, the new major questions doctrine that matured in WV v EPA is unwelcome from my perspective. Unlike the non-delegation doctrine, it cannot easily be traced to the same constitutional concerns, and it is isn’t immediately clear to me that “clear statements” will really provoke much deliberation. The doctrine appears to be a wholly judicial creation; it complicates the law of judicial review, puts a hurdle up for Congress, and finds no real animating purpose, beyond nods to concerns already covered by the existing non-delegation doctrine. I stress, as I did above, that I too worry about “bureaucratic domination,” drift, etc. But these are concerns that are best kept in check by a legislature and by consistent and principled application of the law of judicial review. Creating an amorphous thumb on the scale, in this manner, is an ill-fit.

Nothing Doing

A brief rebuttal to responses to my last post on inappropriate criticism of the US Supreme Court’s abortion decision

My post yesterday, which took issue with what I see as disturbingly political criticism of the US Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization has attracted a number of responses, and it might be worth offering a quick rebuttal to the negative ones. As with yesterday’s post, the aim is not to dunk on individuals, but to address what I see as trends.

Response #1: But there are American professors, to say nothing of the dissenting judges in Dobbs, who have criticized the decision!

Sure. And insofar as their criticism is based on constitutional argument, that’s great. But that doesn’t absolve the people who choose to criticise based on political rather than legal claims.

Response #2: Dobbs breaks the rules of stare decisis!

If most criticism of Dobbs by Canadian and other lawyers, law professors, and organizations were actually focused on its treatment of precedent, I would not have written yesterday’s post. But it just doesn’t. I have seen professors share cartoons of majority judges as Taliban.

I would also note that there is, at the very least, a danger of inconsistency when people put too much of an emphasis on arguments from precedent. To be sure, arguments about inconsistency or even hypocrisy aren’t as interesting as people sometimes think, because they don’t answer the question of when the inconsistent or hypocritical person is actually right. But from the standpoint of personal integrity the issue is worth keeping in mind. And so, how many of those Canadian readers who defend the US Supreme Court’s previous abortion decisions on this basis were as critical of the Supreme Court’s of Canada reversal of precedent on, say, assisted suicide as they are of Dobbs? How many would have been as critical if the 2016 election had gone just that little bit differently and a left-leaning US Supreme Court had reversed Citizens United v Federal Election Commission, 558 US 310 (2010)?

Speaking of electoral outcomes and judicial appointments:

Response #3: The Dobbs majority judges were appointed by politicians who wanted to secure just this result!

So they were. But so what? A judicial decision stands or falls on its legal correctness. If it is correct, it doesn’t matter why the judge who made it was appointed. Ditto if it is wrong, of course. The issue of inconsistency or double standards is really worth thinking about here. The Justices appointed by Franklin Roosevelt were meant to uphold the New Deal policies, and did so. Earl Warren was a former politician, appointed by Dwight Eisenhower for crassly political reasons, so far as I understand. Are the decisions of the New Deal and Warren courts illegitimate for that reason alone? Nobody thinks that. Some were right, and some were wrong, and to say which were which we need to make a legal argument. So it is with Dobbs.

It’s also worth pointing out that the judges who dissented in Dobbs were also appointed with their views on this issue top of mind, and that their votes not only on this point but on almost every other are more closely aligned than those of their right-leaning colleagues. Yet somehow their votes are not dismissed as hackery for that reason.

And, before Canadians get self-righteous about just how political American judicial appointments are, they should recall that appointments to the Supreme Court are no less political, if perhaps less transparently political, here. So far as I’m concerned, that’s fine. If you take a different view, that’s fine too. But if you only proclaim this view in response to a decision you particularly dislike, I won’t take you too seriously.

And this brings me to

Response #4: But Dobbs is just different because it’s too important!

And, alternatively

Response #5: All constitutional decisions about rights are political anyway!

Thanks for making my point. You think that sometimes (#4), or indeed always (#5), constitutional adjudication is a political, not a legal, endeavour. This is a plausible view, but it is inconsistent with accusing the Dobbs majority of hackery ― they merely take the different side of a contentious political issue. And you should be advocating for the abolition of judicial review, à la Jeremy Waldron, because there’s no justification for having political decisions made by a small committee of unelected lawyers. As I pointed out yesterday, Dobbs is actually a step in the right direction from that perspective. If people were to take the Waldronian position openly, I’d debate them on the merits and be content. But when they insist on having judicial review of legislation, but only provided it goes just the way they like, I am upset and alarmed.

Turning Ten

Wishing Double Aspect a happy birthday!

Double Aspect turns ten years old today. I meant it to fill a gap in the blogosphere: the absence of a blog dedicated to Canadian constitutional law. Whether or not I have managed to fill that gap at least in part, I will let the readers judge. I would like to think that Double Aspect has at least enlivened things and provided a perspective that would otherwise have been missing from the Canadian conversation. Admittedly, doing so was not really part of the original plan, but I would like to think that it has been a beneficial, if at first unforeseen, development.

Meanwhile the blog developed in other ways too. For one thing, I have been fortunate to welcome fellow scholars as guests, either on an ad hoc basis or as part of various collective endeavours. Of these, the Dunsmuir Decade symposium which Double Aspect co-hosted with Paul Daly’s Administrative Law Matters is of course the most important and memorable one. It is also a reflection of another way this blog’s remit has grown: its expansion into administrative law, to become a “full-service” public law blog. And that, in turn, is mostly thanks to the biggest and best change that has happened over the last ten years ― the addition of Mark Mancini as a full-time co-blogger. Mark has made an incredible contribution to Double Aspect, providing fresh insights that make the blog a more interesting place than it would have been with me alone, and sometimes keeping it going when I was unable to.

Speaking of which: we have been silent over the last couple of months, which of course is much longer than I would like. For me personally there has been the small matter of starting a new job and moving to the United Kingdom, while facing a couple of awkwardly placed deadlines. I know that Mark too has had deadlines galore of late. (And he has managed to keep his Substack newsletter going through it all.) However, these are all temporary difficulties. We will be back to normal eventually ― though the next few weeks will still be tough. We aren’t stopping. It would be rash to promise ten more years, but you know what? Don’t bet against it!

A final thought, since I’m on the subject of the future. One can wonder about the ongoing relevance of the blogging format, in this age of podcasts and Twitter hot takes. The expansion of the Clawbies’ ― once the Canadian law blogging awards ― coverage into such media speaks to the way people consume their legal nerdery. One can also wonder ― as people already were years ago ― whether the future of blogging, if it has one, is not with sleek, professionally run outfits like the UK Constitutional Law Blog ― though there is still nothing of the sort in Canada. But I still think that the humble personal (as it then was) or small group (as Double Aspect now is) blog can do things that other formats cannot. As I wrote then

Even if the personal blog cannot compete with a professionally edited platform for high-level scholarship on pure quality, it has its own, different value. It can be a way for new and rebellious voices to enter into and enliven the conversation. It can be a proving ground for people and ideas. It can be the record of a coherent or developing thought process. In can, in short, be many things that a edited blog [or a podcast!] cannot. Call me a blogging romantic if you will,

But before I let your steam drill beat me down,
I’d die with a hammer in my hand, Lord, Lord,
I’d die with a hammer in my hand.

Glad to Be Unhappy

Some people in liberal societies are unhappy. But what exactly does this tell us?

Ross Douthat has made an interesting observation on Twitter a couple of days ago: “The biggest challenge for liberalism is the genuine unhappiness of a lot of people under the conditions of liberalism.” I’m not sure that this is right ― liberalism might be facing greater challenges now ― but let’s assume that it is. The implications of this claim are worth thinking through; they might be rather different than many, Mr. Douthat perhaps among them, might assume.

First, at the risk of being tart, if the biggest challenge a philosophy is facing is that its application makes people unhappy, that’s not such a bad problem to have. The application of most political philosophies makes an awful lot of people not just unhappy, but dead. If the worst liberalism can do to you is make you miserable ― as opposed to immiserated, like socialism, whether of left-wing or or of right-wing varieties ― that’s actually a point in favour of liberalism.

Second, we have to ask why people are unhappy about living “under conditions of liberalism”. Mr. Douthat seems to point to people annoyed at being bossed around by technocrats and to those developing harmful addictions, perhaps due to a lack of attachments and meaning in their lives. But these things are by no means peculiar problems of liberalism. Socialist systems are also dominated by technocrats; in militarized or religious authoritarian systems, the social scientists and planners are replaced by generals or priests, who boss people around just as much. And while illiberal societies may foster the social bonds that will help some people relate to their fellows, they will destroy others ― typically, those running across the boundaries of class, race, and country.

To say that people are unhappy “under conditions of liberalism” is to point to a correlation, not a causal relationship. And it is not clear that a causal relationship could fairly be established at all. As I have noted in a previous discussion of liberalism here, “critics of liberalism are often confused, or obfuscating, about its nature: it is a political, not a moral, philosophy; a theory of how political power should be organized, not of how to live a good life”. Nor does it tell people how to be happy; only that they have an inalienable right to try. It is hardly a fair criticism of liberalism that it does not achieve something that it does not attempt.

Besides, when reflecting on the real or alleged failings of liberalism, one should keep in mind the ills of its alternatives. If some people struggle in the open liberal society, others would chafe under the oppressive restrictions of an illiberal one. There is a seen-and-unseen issue here: living “under conditions of liberalism” we see those whom they do not suit. We do not see as clearly those who could thrive under no other “conditions”―indeed, those whom the masters of an illiberal society would seek to eliminate.

The people who aspired to command illiberal societies are, indeed, another group that is unhappy under liberalism. So long as liberal institutions hold, they are unable to impose their own preferences on society, either because they can’t get them democratically enacted or because these preferences, however popular, are incompatible with liberal freedoms enshrined in binding constitutions. But I don’t think that their unhappiness should count for much. Those who would rule others by censorship, manipulation, or force deserve no sympathy from those whom they would rule.

A consideration of alternatives to liberalism also brings us to the third point I wish to make in response to Mr. Douthat. Liberal societies are the only ones in which unhappiness at the state of society and indeed at life, the universe, and everything can really be expressed. This is so for two reasons, one of which is obvious, and the other less so.

The obvious one in any but the liberal societies, unhappiness with the established order ― again, not just the established political order, but also the established order of things more broadly ― is treated not merely as an intellectual challenge but as a heresy, a thoughtcrime, or a form of treason to the nation. In illiberal societies, by contrast, expressions of disaffection are actually suppressed ― and, often, the person expressing such unhappiness is suppressed (or at least forced to repent or “re-educated”) along with his or her ideas. By contrast, illiberal societies might make room for private sorrows, but only within an overall worldview that says that, at a high enough level of abstraction, things are just as they ought to be.

I should note here that some unserious people affect to think that discontent with the existing state of affairs cannot be freely expressed in modern-day liberal societies. These societies are certainly not flawless ― not least thanks to the pressure of their illiberal members. But such claims are nonetheless preposterous. One sign of this is that they tend to be freely made on the same social media platforms that are supposed to be suppressing dissent against liberalism. Meanwhile, in Canada, what is by all accounts a very disruptive political protest is ongoing blocks away from the seat of government, with minimal police reaction.

The subtler yet more fundamental reason why liberalism uniquely enables not only the expression but perhaps the very existence of unhappiness with the world is that to become unhappy one has to be able to develop a personal scale of values against which the world fails to measure up. If one’s values are the same as everyone’s, as illiberal societies tend to make them, they will integrate the answers to any concerns with the world supplied by the prevailing ideology. If one has no genuine values to speak of at all ― as is the case for the average citizen, and especially for the politicized one, under totalitarianism, as Hayek pointed out ― one has no means to critique the world.

One writer who understood this essential relationship between freedom and unhappiness is Milan Kundera, in The Unbearable Lightness of Being. He wrote that (I translate from the French, which itself is a translation from the original Czech, so… not ideal) “communism, fascism, all occupations and all invasions hide a more fundamental and universal evil; its image was the parade of people who march, arms raised, shouting the same syllables in unison”. People can only be made to march in this way by what Kundera calls the kitsch ― the “aesthetic ideal” of “a world in which shit is denied and where all act as if it did not exist”, which can sustain “categorical agreement with being”. Under liberalism,

where many currents [of thought] exist and the influence of one cancels or limits that of the others one can just about escape the inquisition of the kitsch. … But where one political movement holds all power, one finds oneself at once in the realm of totalitarian kitsch.

There,

All that breaks with kitsch is banished: any manifestation of individualism (for any dissonance is like a slap in the face of the smiling brotherhood), any scepticism (for he who begins by doubting the smallest detail will end doubt doubting life as such), irony (because in the realm of kitsch, everything must be taken seriously.

The open existence of unhappiness ― it’s not being packed away to “the gulag [which] can be understood as the septic tank into which totalitarian kitsch casts is rubbish” ― is only possible in a free society. It is not so much a challenge for liberalism as its crowning achievement. We should be glad to be unhappy. It means we are free.

Let Us Reason Together

A call for dialogue on constitutional interpretation, free from anti-originalist myths

This post is co-written with Mark Mancini

The nomination of Amy Coney Barrett, an originalist scholar and appellate judge, to the US Supreme Court provoked a flare-up of interest in originalism from people who do not normally spend much time thinking about constitutional interpretation. That would be all to the good, if this engagement did not all too often rely on myths and misconceptions, some of them dating from the early days of modern originalism, others bearing little relationship with what any serious originalists in the US and Canada believe. (An entire Twitter account has now sprung up to collect some of these misconceptions.) In this post, we address a couple of myths about constitutional interpretation that underlie the memes, tweetstorms, and political zingers, and call on our readers to engage in more fruitful conversation about constitutional interpretation.

Myth 1: Originalism freezes the preferences and intentions of the founders in law

The overall view of originalism held or propagated by most of its lay critics and, alas, many professional ones, is that it is meant to keep it exactly as the framers of the constitution intended, obstinately refusing to recognize any changes in society that have occurred since the framing. Hence the much repeated claims that, for example, Justice Barrett couldn’t even be appointed to the Supreme Court since the framers of the US Constitution had not anticipated women judges. In the Canadian context, those who hold this view insist that a rewriting of the Constitution Act, 1867 by living constitutionalist judges was necessary to make women eligible to serve in the Senate, since the Fathers of Confederation did not mean for them to do so.

These claims are based on several misconceptions. One has to do with the nature of the originalist enterprise. Most originalists today recognize that it is both wrong and, in all likelihood, futile to seek to give effect to the intentions or expectations of the framers of a constitution. Wrong, because only that which is enacted through the relevant constitution-making process, can be binding. Intentions, hopes, and expectations are not. Futile, because―as the critics of early versions of originalism pointed out―constitutional texts are typically compromises reached by large and diverse groups of framers, who do not necessarily share intentions and expectations as to what their handiwork will achieve and how it will be applied in practice.

The task of the originalist constitutional interpreter is to focus on that on which the framers of the constitution agreed and which is binding law: the text. This is not to say that originalism is equivalent to “strict constructionism”. A good originalist knows that text is read in context, and some originalist theories, at least, even accommodate the idea of unwritten constitutional rules. A good originalist, like Justice Barrett, also knows that legal texts can be written at different levels of generality, and that they can employ standards as well as rules, and seeks to give effect to the language as written, neither narrowing it if broad nor expanding it if narrow.

This, incidentally, is another reason why an “expected applications” approach to interpretation is not good originalism. If the framers of the text used language that calls on its interpreters to engage in moral or practical reasoning, for example by prohibiting “cruel” punishments or “unreasonable” searches, the interpreters who would confine the text to what was regarded as cruel or unreasonable when it was enacted would disregard these instructions. To the extent that this is what the derisive label of “frozen rights” or “frozen concepts” interpretation refers to, the derision is justified. But, while in fairness to originalism’s doubters such criticism could be levelled at its early practitioners (including, sometimes, Justice Scalia), contemporary originalists know better than to make this mistake.

As a result, more often than not, originalism has no difficulty applying constitutional rules to changing and developing society. Broad constitutional language will encompass cases not anticipated by its framers. The so-called “Persons Case” is an example: it is probably true that the Fathers of Confederation would not have expected women to be appointed to the Senate, but they used language that, as Lord Sankey shows, naturally extended to women, and therefore did not need to be construed as barring their appointment. Another example from the United States: infrared technology, used to “search” homes from the outside, were clearly not in the contemplation of the framers. But Justice Scalia, originalist though he was, held in Kyllo that using it was indeed a search for the purposes of the 4th Amendment, which protects the privacy of the home from invasion by new means as well as old.

That said, originalists do not believe that constitutional language, even when broad, let alone when precise, is infinitely malleable. As Lord Sankey says in the Persons Case, had the framers of 1867 chosen to specify that Senators were required to be men, no legitimate interpretation could have bypassed or overturned this choice. Indeed, few, if any, living constitutionalists would disagree. This brings us to the next myth.

Myth 2: Originalists just don’t want the constitution to change

What if the Constitution Act, 1867 had specified that being male was a qualification for being a Senator? Originalists believe that such an unfortunate drafting choice of the constitution’s framers would have had to be undone by constitutional amendment, and welcomed such an amendment. Originalism is an approach to interpreting a text as it stands from time to time; it does not counsel against that text being amended when it is no longer in tune with the needs of society, provided that the amendment is carried out by means provided in the constitution, rather than by the courts. The claims, made by originalism’s American critics, that originalists would somehow disregard constitutional amendments that protect the rights of African Americans, women, and other groups are quite without foundation in any originalists’ actual commitments. They also ignore voluminous originalist research into the meaning of these amendments.

In Canada, any appeals to the possibility of constitutional amendment tend to be dismissed as fanciful. Our constitution is said to be impossible to amend. But this simply isn’t so. Indeed, given that Canada is a federation, it is difficult to imagine an amending formulate less restrictive than the “7/50” that the Constitution Act, 1982 makes the default. It is worth recalling that prior to 1982 convention required at least as much consensus, and possibly unanimity―and yet amendments to the Constitution Act, 1867 were made from time to time. This is not to deny, of course, that convincing our fellow-citizens and legislators that our favourite constitutional reform projects are worthwhile is difficult. But this is as it should be in a constitutional democracy, and no reason for seeking to implement these projects through judicial fiat.

A call to Dialogue

Now, originalism is not above criticism or beyond reproach. For example, we might usefully debate the feasibility of inquiries into the original public meaning of constitutional texts, the worry that a public meaning originalism that acknowledges the underdeterminacy of much constitutional language fails to usefully constrain judges, and the possibility that self-proclaimed originalist judges will only use their ostensible commitments as a smokescreen to hide their implementation of favoured policies. Originalism faces theoretical challenges, such as the issue of its relationship with the principle of stare decisis (to which Judge Barrett devoted much of her scholarship), and―especially in the Canadian context―the need to make sense of significant unwritten constitutional rules.

We would welcome engagement with these issues, so long as it took originalism as a serious theory and practice, rather than a self-evidently mistaken unCanadian aberration. For all the protestations of the Canadian legal academy (and, more rarely, of the courts) that originalism has no place in our jurisprudence, it is simply beyond doubt that something akin to originalism is often, although by no means always, an important factor in the Supreme Court’s decision-making. If the Court is wrong to reason in this way, the critics should explain why, instead of insisting, in the face of evidence to the contrary, that it doesn’t.

We would also welcome a clear articulation of the critics’ own interpretive commitments, which is curiously missing from Canadian (and, mostly, even American) scholarship. We are admonished that the Canadian constitution is a “living tree”, but seldom told what precisely this means. For example, when are the courts entitled or required to “evolve” constitutional meaning? On what should they base their decision to do so? Are there limits to their power? By what means does living constitutionalism protect against judges who are less enlightened than the framers of the constitution or who think that changed circumstances require restricting rights instead of expanding them? Without an explanation on these and some other matters, it is difficult to compare the plausibility of living constitutionalist and originalist theories, and assertions of the former’s superiority fall to be taken on faith, which is antithetical to serious scholarly or even political debate.

Such debate would be to our mutual advantage, originalists and living constitutionalists alike. After all, we are not merely trying to score rhetorical points or preserve our positions, whether in politics or in the academy, from competitors. We are trying to answer difficult but consequential questions about the way in which judicial power ought to be exercised and our fundamental laws are to be applied. If we are to have any chance of getting at the right answers to these questions, we need to make our best arguments and measure them against the best arguments of those who disagree with us. Come, let us reason together.

Of Malice and Men

Double Aspect responds to attacks on another scholar

This post is co-written with Mark Mancini

Suppose you say something on Twitter that you wish you hadn’t said. No, actually―if you’re on Twitter―remember that time you said something you wish you hadn’t said? How would you hope that the rest of us would react? For our part, a sad bemused shrug and, perhaps, a friendly private word of reproof sound about right. Well, this is a post about doing unto others, etc.

When Emmett Macfarlane tweeted about “burning down” the US Congress to prevent a successor to the late Justice Ginsburg being confirmed before the presidential election, we cringed a bit. There is too much hyperbole out there, too much violent imagery, too much speaking as if the next election, or the next judicial appointment, is―literally―the end of the world. Twitter makes this phenomenon worse. As Justice Stratas of the Federal Court of Appeal noted in a recent talk, the Twitter world is like the Holodeck from Star Trek―a convincing pastiche of reality. Twitter, in many cases, magnifies our worst impulses.

There is too much of this nonsense on all sides. President Obama, who often modelled grace and calm when his political opponents and supporters alike lacked both, now suggests that questions such as “whether or not our economy is fair, our society is just, women are treated equally, our planet survives, and our democracy endures” turn on who replaces the late Justice Ginsburg. On US political right, the 2016 election was notoriously compared to Flight 93―the plane that crashed in a field in Pennsylvania on September 11, 2001 after the passengers stormed the cabin to prevent hijackers from turning it on their intended target. Similar arguments are being made again. The message is that even death―or at any rate a vote for an avowedly appalling man who would uphold none of the principles one claims to believe―is preferable to the other side taking power until the next election.

So, to repeat, we cringed at Professor Macfarlane’s “burn it down” tweet. And yet we knew full well―as does anyone with a brain and even a modicum of good faith―that it is only a hyperbolic, spur-of-the-moment outburst, not an actual call to arson and violence. Professor Macfarlane’s Twitter persona may be cantankerous, but he is a genuine scholar and a decent man. (Disclosure: one of us (Sirota) has contributed a chapter to a book project Professor Macfarlane edits. You can discount our arguments accordingly, but the diversity of views represented in that project speaks to Professor Macfarlane’s scholarly seriousness and open-mindedness.)

Sadly, there are people who do not operate in good faith at all. They affect to think, or at any rate they say, that Professor Macfarlane was actually threatening violence, and profess worry for the safety of his Trump-supporting students. This is arrant nonsense, a smear with no factual basis whatsoever. Professor Macfarlane’s opinions are neither new nor secret, and those who now betake themselves to the fainting couch haven’t paused for a second to inquire whether he has ever been so much as unfair, let alone threatening, to his students.

These people are as uninterested in truth as they are lacking in charity. They see a political opponent say something that can be―at least to those equally uncharitable―made to look like a threat or a sign of depravity, and pounce to virtue-signal on Twitter, to whip up their allies’ outrage, and thereby to increase their own standing with their in-group. They are hypocrites too, with their feigned outrage about hyperbolic rhetoric which is no worse than that in which they themselves engage. They deserve nothing but unreserved rejection.

A couple of weeks ago, another scholar, Dwight Newman, was disparaged by people who engaged in an uncharitable if not outright twisted reading of his work to impugn his integrity. That was an attack from the left on someone perceived to be on the right. We were proud to give Professor Newman an opportunity to refute their smears (and one of us (Sirota) added a further response of his own). Now Professor Macfarlane is being vilified by people who are trying to make him into an avatar of the unhinged left. Although both the targets of these attacks (an article in one case; a tweet in the other) and their perpetrators (fellow scholars, alas, in the former case; anti-intellectual populists in the latter) are different, they have much in common.

Both need to be defeated. As Justin Amash pointed out just yesterday, limited government―that is, a government that respects democracy and human rights―cannot exist without trust among citizens. To be sure, we need not pretend that our fellow-citizens, let alone our governments, are better and more trustworthy than they really are. But, if we want to continue living together in peace and freedom, we must not pretend that they are worse people than we know them to be for the sake of scoring some political points. To quote another American politician, we must go forward with malice toward none, and charity for all. 

Contrarians at the Gates

On responsible scholarship and engagement with heterodox ideas

Professor Newman has posted his own response to the “article” in which Stepan Wood, Meinhard Doelle, and Dayna Scott attempt to besmirch his well-earned reputation as one of Canada’s leading constitutional law scholars. As he says, “it is a serious threat to responsible academic discourse to make mistake-riddled arguments in ways that paint academic interlocutors as personally irresponsible and lacking integrity”, which, as he shows, is what Professors Wood, Doelle, and Scott have done. As he also explains, while his critics purport to be concerned about “responsible scholarship”, their argument is so focused on just one article that he wrote that one cannot but “ask what the goal really was”. I will venture some speculation about the answer to this question.

To be blunt, I think that the goal is to constrain the scope of what may be said by academics writing on politically salient issues, how it can be said, and where. Now, Professors Wood, Doelle, and Scott deny this. They write:

Vigorous debate and disagreement are the lifeblood of academic discourse and the engine for advancement of knowledge. To insist on rigour and fairness in such debate is not to impose “political correctness” on scholars who espouse unpopular views. Nor is it a manifestation of the fragility of a liberal academic establishment unable to handle controversial perspectives. (13)

Of course this is true, as a general proposition. But we need not take on faith the claims of those who would have us believe that they do no more than dispassionately insist on rigour and fairness. We can look at the specifics of their argument, and at the way in which it is framed. Professor Newman has mostly done the former. I shall mostly do the latter.


One striking thing about the Wood, Doelle, and Scott article is that it is not just about “responsible scholarship” as a timeless value, as Professor Newman’s response is. It’s about “responsible scholarship in a crisis” (emphasis mine). This framing is not just a flourish. The entire opening section of the article argues that debates about climate policy are occurring “in the context of an unprecedented crisis”, (2) and that scholarly commentary ― and hence the norms of responsible scholarship ― are especially salient at such times because “[a]ctors in government, civil society and business often appeal to academic expertise to diagnose and resolve crises”. (3)

The norms to which Professors Wood, Doelle, and Scott appeal are not crisis-specific, to be sure (though, as Professor Newman shows, their relevance to their argument is questionable), but this framing is not innocent. It reinforces the dynamic which my colleague Allan Beever decries in his article on “Engagement, Criticism, and the Academic Lawyer”, (2017) 27 New Zealand Universities Law Review 1111. Professor Beever suggests that

academic lawyers, given their subordinate position in the legal system, are all too desperate to believe that they really matter, believing that if they matter that must be in something like the way that judges matter, thereby coming to believe that “dangerous” ideas have to be battled against in the way that they would be were they, say, influencing the decisions of the Supreme Court. (1125)

Of course, if the dangerous ideas are likely to influence the decision of a Supreme Court in a crisis, they are all the more dangerous and must be battled against all the stronger. This is why I say that Professors Wood, Doelle, and Scott are seeking to limit what can be said about politically salient issues: it is the topical nature and valence of Professor Newman’s ideas that trigger their attack. And they make no bones about the fact that they indeed worried about Professor Newman’s ideas influencing the Supreme Court of Canada’s consideration of the constitutionality of the federal carbon tax legislation.

I suspect, moreover, that this “crisis” framing helps explain why Professors Wood, Doelle, and Scott escalate the battle further and attack not only Professor Newman’s “dangerous” ideas but his integrity. His work, they say, “crosses a line that separates distortion and disparagement from constructive scholarly debate” (12) and “does not uphold standards of scrupulous fairness in scholarly research”. (13) It cannot be trusted and should be summarily disregarded. This makes actual scholarly debate unnecessary and indeed impossible ― there’s no point or even meaning in debating a dishonest person.

Yet this is facile and self-serving. Instead of doing the hard work of refuting the arguments they disagree with, Professors Wood, Doelle, and Scott attempt to discredit the person advancing them. This is also, of course, a myopic tactic that can and is bound to be used against scholars who agree with the substantive positions that Professors Wood Doelle, and Scott would defend. Indeed I’m pretty sure that ad hominem attacks on academics have long been more of a “thing” on the political right than on the left, not necessarily because the right is somehow even more immoral than the left, but simply because the academy has always tilted leftwards, making it easier for the right to find targets there. The tilt is growing ever stronger, and as it does so the cost to the political right of attacking not only individual scholars but also entire disciplines and the academy as a whole falls ― there is less and less of a risk of making victims with friendly fire. “Progressive” scholars who make personal discreditation an acceptable way of conducting academic disputes are only helping sharpen the weapons that will be directed at them.

But regardless of political implications, what is certain is that personal discreditation destroys the possibility of genuine scholarly debate bringing truth to light. Such debate requires mutual criticism, but is incompatible with enmity. As Professor Beever writes, “it is important … to distinguish between criticism and hostility. Criticism can be extremely robust, but it always takes its object seriously.” (1125) Professors Wood, Doelle, and Scott don’t want their readers to take the work they attack seriously, and so prove Professor Beever’s point that “[i]n law … hostility all too frequently prevents genuine criticism from occurring”. (1125)


Let me turn now briefly to my claim that Professors Wood, Doelle, and Scott want to limit the manner in which scholarly debate can happen. They chide Professor Newman both for criticizing the work of particular scholars, for example making a point of noting that one of them is “his junior untenured colleague”. (Ironically, especially given Professors Wood, Doelle, and Scott’s concern with distortions, the person in question is no longer Professor Newman’s colleague.) But then they also accuse Professor Newman of “casual generalizations [that] are examples of sloppy research”, (10) because he does not name other scholars who represent the trends against which he inveighs.

You’re damned if you do name specific scholars to criticize ― especially if they are junior colleagues ― and equally damned if you don’t. Now, one might debate how much a scholar should name the names of those he or she criticizes. Professor Beever suggests that this should be done sparingly, and widely held positions should be attacked without singling out individual representatives. I’m not sure I quite agree. But in any case it’s one or the other. Either generalizing is bad, and one should focus on individuals ― but then, it really shouldn’t matter who they are ― or one should be allowed to generalize. (I’ll note that, as a still relatively junior academic, I rather resent the suggestion that I should be treated with kid gloves by my elders and betters, at my institution or anywhere else.)

Besides, there is also something perverse about Professors Wood, Doelle, and Scott attacking the tone of Professor Newman’s article and its alleged lack of fairness to the targets of its criticism in an article that is anything but charitable, and indeed quite unfair, to Professor Newman, as he eloquently shows. Yet this is hardly surprising. There is a consistent asymmetry to tone-policing in the Canadian legal community. Scholars who criticize the received wisdom and its upholders are expected to be on their best behaviour. Those who uphold it are held to no such standard.


Finally, I turn to the question of where scholarly debate can take place. Professors Wood, Doelle, and Scott write that “[a] rigorous peer review process would normally catch most problems like the ones we have identified”, (13) and add, in a footnote, that “[t]he Saskatchewan Law Review failed to reply to inquiries … whether Professor Newman’s article was peer reviewed”. (13) Some of the subsequent Twitter discussion also focused on this issue. Yet to the extent that the implication here is that “responsible scholarship” is peer-reviewed scholarship, this is beside the point.

One issue is that, just like the invocation of crisis and the call for respectful tone, the appeal to the authority of peer review is less innocent than it might seem. As I wrote here, “the peer review process is a bit of a crapshoot” for heterodox ideas. Even when they are well argued, “some reviewers will bristle and see their role as that of gatekeepers preserving scholarship from heresy”. To be sure, as I further pointed out, heterodox scholarship can make it through peer review. But the issue of excessive gate-keeping, often applying double standards, is real enough. To insist that only scholarship that has made it through peer review matters is to load the scales in favour of conformist ideas, which have an easier time overcoming this hurdle.

But the real problem is more fundamental. Peer review simply does not guarantee quality; plenty of rubbish makes it through peer review and gets published, while good ideas get rejected. When Joshua Gans and George Shepherd asked

140 leading economists, including all living winners of the Nobel Prize and John Bates Clark Medal, to describe instances in which journals rejected their papers [they] hit a nerve. More than 60 percent responded, many with several blistering pages. (165)

It would be interesting to see a similar study in law, but I rather doubt that peer review in our discipline does much better.

Conversely, the fact that an idea did not go through peer review ― for example because it was published in an American journal, or even on a blog ― does not mean that it is bad. Readers can decide for themselves. A lawyer, or at least an expert in a given field, let alone a judge assisted by a platoon of clerks, can always check for him- or herself whether an argument holds up ― whether the sources it cites support it, whether it is missing something. If one wants to criticize the defects of an argument, one should identify them, instead of lazily musing about whether the argument has been peer reviewed.


This, ultimately, is a big part of what the matter comes down to: faced with deep and seemingly consequential disagreements, are we willing to do the hard work of explaining why our opponents are misguided and mistaken? Or are we content to discredit or tone-police them, or say that they didn’t published their ideas in the right format or in the right venue, so as to avoid substantive engagement?

But the issue is not limited to the avoidance of hard work. In a crisis it is tempting to take shortcuts. The lure of sophistry is too powerful to resist. If ad hominem attacks, tone policing, and arguments from authority can help defeat the danger that wrong ideas, or wrong people, will influence decision-makers, why not resort to them? The contrarians are at the gates ― this is no time for old-fashioned notions of probity.

Yet probity, as well as curiosity about ideas one disagrees with, and friendliness to those who expound them, are the perennial values that no crisis can put to rest. Responsible scholars, tear down these walls! Open these gates!

Bouthillier on Expanding Bill 101

Announcing an upcoming guest post by Simon Bouthillier

We are pleased to welcome a new guest blogger, Simon Bouthillier, who will shortly publish a post (en français) on the constitutionality or otherwise of the Québec government’s plan to apply the French-in-the-workplace provisions of the Charter of the French Language, a.k.a. Bill 101, to federally-regulated businesses in the province. Mr. Bouthillier is a graduate of the Université de Sherbrooke (LL.B. and M.B.A.) and is currently studying towards an LL.M. at the McGill Faculty of Law. His research is mainly concerned with the constitutional rights of prisoners. Having read a draft of his post, I am very much looking forward to it.

The Ivory Tower Prisoner’s Dilemma

Why law journals are useless, and why we can’t do without them

“Are [scholarly law] journals even useful nowadays?” Francis Lévesque asked this question in response to a Twitter discussion about the ideological problems that plague the system of peer review, which screens articles published in such journals pretty much everywhere except in the United States. Since I already complained about these problems in a recent post, I might as well reproduce a slightly expanded version of my answer. In short, I think that journals are useless, but they remain, and probably will remain, indispensable due to academia’s collective action problem.

Why are journals fundamentally useless? Because nobody actually reads them. I don’t mean that people don’t read what is in the journals. Well, often, they don’t. But sometimes they do. And not just academics, though admittedly that’s often the audience for which scholars write. At least some articles attract the attention of practising lawyers and of judges. But here’s the thing. People read articles, not journals. Journals as physical or electronic objects, i.e. assemblages of several articles that share a masthead and a typography and not much besides, appearing several time a year, are obsolete and unnecessary.

The reason for this is, of course, that you don’t need a journal, whether in physical or electronic form, to find articles, which, to repeat, is what people (sometimes) want to read. Articles are mostly either discovered by word of mouth ― again, literal or electronic (say posts, for example on this blog, that mention new articles) or found through databases such as HeinOnline, CanLII, or SSRN. Perhaps a few journals ― think, the Harvard Law Review ― are prestigious enough to command attention in their own right. Perhaps some specialized journals are of interest to people in particular areas of research or practice. Thematic issues of particular journals might also be interesting as collections of articles. But the ordinary, generalist journals? Nope. If I read an interesting piece that was published by, say, the McGill Law Journal, I’m not going to even bother looking what else was in the same issue.

But while journals as platforms for scholarship are largely useless, journals as institutions are not. They provide bundles of services some of which may be useful, and one of which makes them indispensable. The maybe-useful services are the ones you are probably thinking of. In particular, journals review and select manuscripts (what a quaint word for things that haven’t been written by hand this past century!), and edit the ones they choose, and journals ensure that published articles are transmitted to databases where they can, hopefully, be found. The indispensable service is one you might also be thinking of but wouldn’t want to admit to be: signalling.

The maybe-useful stuff should be really useful, but it isn’t always, as it turns out. The review and selection process is sometimes ― and perhaps more commonly than I would have thought ― tainted by ideological gate-keeping or simple turf wars or even cronyism and rank snobbery. In the United States, the problems are a bit different, since it is student editors who are fully in control or editorial decisions, without input from peer reviewers, but things are not necessarily better overall. The editing can be hit-or-miss ― sometimes useful, but sometimes the editors try to impose arbitrary ideas of what good writing should look like on authors who actually have more sense and experience. Even the transmission-to-databases function, which is genuinely important ― it’s one massive advantage journals have over blogs, for which no equivalent of the journal databases exists ― works better with some journals than with others. North American student-run journals are widely available; the ones owned by publishing companies such as the University of Toronto Press, the Oxford University Press, SAGE, etc, are sometimes only available through their proprietary databases, which makes the difficult to find.

Signaling is another matter though. Journals provide it reliably because they don’t actually need to do anything to provide it. Their reputation just exists ― in the case of journals associated with particular law schools, primarily as a result of the school’s reputation. But it becomes a self-fulfilling prophecy. Publishing in a particular journal, or category of journals, marks you as a successful scholar, so people who want to be known as successful publish in these journals, which helps preserve their reputation, and so on and on.

Yet despite being the result of little more than bootstrapping, this signalling function is very important to academics. Your disciplinary peers ― those who write in the same area as you ― don’t need it. They can assess the value of your scholarship directly, by reading it. But others can’t do that well, because they lack time and interest, and because they just don’t know enough about your particular area. The latter problem is getting ever worse, as legal scholarship becomes more and more specialized. And these others matter in a scholar’s career: they are the members of hiring and promotion committees, and perhaps those who assess proposals for funding agencies (though I lack experience to speak to that). Not being able to assess a scholar’s output directly, they look for informational shortcuts and proxies. Journal prestige is the most obvious one.

As a result, unless you’ve achieved everything you wanted in your career and have no aspirations for further promotions or going to another school, or unless you can signal your productivity and quality through books alone (and I don’t think many legal academics can do that), you can’t afford not to chase the signaling that journals provide. Even if you believe that the signal is actual mostly noise, even if you think it means little, you can’t ignore it. You are competing against people who might not share these views and get all the signal they can, and the judges of that competition might actually believe that the signal is meaningful.

The result is a classic prisoner’s dilemma. It’s in your best interest to act in a way you know is sub-optimal for the scholarly community. You know that if you don’t, you’ll be, to use a technical term, screwed. One might devise alternative systems for publication. They could well provide the useful services that journals may or may not be providing now. They might even try to provide their own signaling. But unless almost everyone buys into the same alternative system more or less at once, you’ll have to be mad to go for one in particular. What if it doesn’t take off? Then your efforts to establish your reputation have been wasted, and your career is compromised.

So we are stuck. Perhaps some senior scholars can take the lead and establish a new system. Perhaps then those of us who still have careers to make can follow them. But I’m not optimistic. That said, if you think I’m wrong, and especially if you have concrete ideas, I’d love to hear from you. It would be nice to be wrong about this. Mr. Lévesque thinks I am, but I’m afraid that his technological optimism is no match for my collective-action pessimism.